UNLV Law Professor: The States Can Already Force You to Buy Broccoli

NETANYA, ISRAEL - FEBRUARY 22: Freshly harvested broccoli are on sale in the local produce market February 22, 2006 in Netanya in central Israel. Fresh locally-grown vegetables, a source of antioxidants according to the American Heart Association, feature regularly in meals in Mediterranean countries. The Mediterranean diet, a term used to broadly describe the eating habits of the people of the region, is widely believed to be responsible for the low rates of chronic heart disease in the populations of the 16 countries bordering the Mediterranean Sea. (Photo by David Silverman/Getty Images)

(LAS VEGAS CBS KXNT) Americans await a U.S. Supreme Court decision about the Affordable Care Act, and legal pundits have been in demand by news media, to preview the possible outcomes. The entire law could be struck down, or upheld, but it’s not likely to be that simple, according to most experts, who hasten to add that predicting Supreme Court decisions puts them out on a limb.

Opponents hope that the portion known as the individual mandate will be struck down. The mandate is central to their legal challenge. The claim is that the government has overreached by requiring everyone who earns more than 133 percent of the federal poverty level to purchase health insurance, or pay a penalty.

But the Court may take into consideration that if the mandate is struck down and the rest of the law is upheld, insurance companies will be forced to cover preexisting conditions without the additional revenue the mandate would provide. The Court could go further, and strike down both the mandate and the preexisting condition coverage, because those two pieces are closely related.

“That wouldn’t be a constitutional question,” Boyd Law School Professor Ian Bartrum told KXNT. “You can still make them pay for preexisting conditions if they’re binge eating, but I think there’s a possibility the Court could just say, ‘look, it doesn’t make any sense to sever this part if we’re going to leave this part in place.'”

In yet another scenario, the Medicaid expansion could be struck down, because the states have claimed they’ll be unable to meet the financial burden of caring for the additional people required by the ACA.

A question that hasn’t been sufficiently discussed, Batrum said, is the question arising from the health insurance mandate currently imposed by Massachusetts.

“This is really a question about whether the federal government can make you buy insurance, because the state governments already do it,” he said. “It’s not as though there’s a problem constitutionally with a government making you buy something,” Bartrum said. The question in this case is whether the federal government can make you do it.”

Another Boyd professor says there may be another kind of constitutional challenge on the horizon, not matter what the Court decides. Professor Peter Bayer told KXNT even if the law stands, civil rights challenges could ensue.

If the law is upheld and the mandate goes into effect, plaintiffs could challenge it on privacy grounds, Bayer said.